21 Tex. 692 | Tex. | 1858
This is a prosecution under the 412th Article of the Penal Code, which reads as follows, to-wit:
The indictment charged that the defendant “ did keep a gaming table for the purpose of gaming;” and the proof showed that he exhibited a game called Grand Raffle, which is not one of the games mentioned specially in the Code in Art. 414. The questions presented are :
1st. Is this an offence ?
2nd. Is it the raffle referred to in the Code in Art. 406 ?
3rd. May there be a gaming device, kept for gaming, which is not included in Art. 412 of the Code ?
A game is a trial of skill, or of chance, or of skill and chance, between two or more contending parties, according to some rule by which each one may succeed or fail in the trial ; of skill, as chess and billiards; of chance, as raffle and simple lottery ; of chance and skill combined, as back-gammon, whist, faro, &c„
The instruments, by which the chance may be developed, and upon and about which the skill may be exercised, are various—as cards, dice, balls, figures, letters, chess-men, checks, &c. ; and these may be operated on singly, or in double, trible, or even quadruple combinations.
Betting upon a game is the mutual agreement and tender of a gift of something valuable, which is to belong to the one or to the other of the contending parties, according to the result of such trial.
The ordinary rules of the game (where there are no special rules stipulated) constitute the terms of the agreement, and define the contingency upon which one or the other is to re
This betting upon games is the evil which our law seeks to eradicate. This is endeavored to be done, not by prohibiting all games from being indulged in, but only particular classes of gaming which are thought to be most pernicious. Whether this broad margin, in the schedule of games, is left exempt from legislative reprobration from an apprehension of entrenching too largely upon the natural liberties of the citizen, or because they do not inflict upon the community calamities of sufficient magnitude to require punitory regimen, or because they are conceived to be innocent amusements, it is wholly immaterial—they are exempt. It is also a matter to be especially noted, that although betting upon games is the evil sought to be reached, there is but one single instance in which it is necessary to allege a betting, or to prove it either, on the part of the prosecution. (Penal Code, Art. 418-411.) In all other cases the sword of the law, when it strikes at all, thrusts at the shield and cover of the evil, the game. It is important in the interpretation and the administration of the law to keep in view the distinction between a game and betting on a game, or gaming, as it is called in the Code.
The prohibited games are divided into two classes, to-wit: 1st. Playing cards in particular places. 2nd. Gaming tables and banks everywhere. The first is merely a trial of skill or chance, one or both, between two or more persons generally each for himself or with partners, according to some rule by which each one may succeed or fail in the trial, and in which cards are the instruments of developing the chance or skill, or both ; and when played at particular places mentioned in the Code. No further reference will be made to the first class than is necessary in illustration of the second, as it is not now under investigation.
In common with the first class, these games or gaming tables and banks come under the general' definition of a game. There all necessary similarity ceases. As there is no specific definition of the offence given, it is important to ascertain what are the constituent elements of the games that are specified in the Code as coming under the second class, as faro, monte, &c., as well as to see how far the Legislature have expressed their intention.
The characteristic principle or element of the gaming tables or banks specified in the Code as faro, monte, <fcc., is that they have a keeper, dealer or exhibiter and operator on the basis of one against the many; the dealer, keeper or exhibiter against the betters, directly or indirectly. In some of them this principle is obvious, the keeper betting directly against each and all the betters, and they against him, as in faro, vingt-un, &c. In others it is disguised and the betters seem to be contending against one another. Such is the case in pool and keno. The keeper charges and takes a per centage upon all the bets that are made, and is therefore interested in
The structure upon which the chances or skill, or both combined, are developed, with cards, dice, balls, &c., is usually a table of some sort, in all such games. Any attempted evasion however in this respect could not change them or prevent them from being indictable games. And the same may be said of the evasion or change of the instruments of developing the chance or skill, as cards, dice, balls, &e.
The leading elements, then, of a gaming table or bank, as deduced by analogy from the specified games, are :
1st. It is a game, according to the general definition.
2nd. It has a keeper, dealer, or exhibitor.
3rd. It is based on the principle of one against the many ; the keeper, dealer, or exhibiter against the betters, directly or indirectly.
4th. It must be exhibited, that is, displayed for the purpose of obtaining betters.
Any change, cover, disguise, or subterfuge, in any such ingredients, for purposes of evasion, would not change the character of the game.
There are other games, falling under this head, (according to the intention of the Legislature as explained in the Code,) which do not, or at least may not, combine all these elements Lilly. As for instance, “ every species of gaming devices known by the name of table or bank.” Also, “any.and all games, which, in common language, are said to be dealt, kept, or exhibitedand also, “ any game played for money on a
Let us apply, in the next place, the rule we have adduced, by analogy from the enumerated offences, to the case before us.
Is “ grand raffle,” as exhibited by defendant, a gaming table or bank ? The raffle, which is in common use, and which is not prohibited by the Code, (Art. 406,) (should the property raffled for not exceed five hundred dollars,) is a game of perfect chance ; in which every participant is equal with every other, in the proportion of his risk and prospect of gain. The prize is a common fund, or that which is purchased by a common fund. Each is an equal actor in developing the chances, in proportion to his risk. Whether they be developed with dice, or some other instrument, is not material. The successful party takes the whole prize, and all the rest lose. The element of one against the many, the keeper against the betters, either directly or indirectly, is not be found in it. It has no keeper, dealer, or exhibitor.
Very different however is “ grand raffle,” as it is developed by the evidence in this case. There are fifty prizes of jewelry, «fee., placed on the numbers from ten to sixty, the whole not amounting to over five hundred dollars in value. Every person, paying fifty cents, is entitled to a throw with ten dice, which, when thrown, will exhibit numbers in the aggregate, not loss than ten. nor more than sixty. The prizes are not
Upon the trial of the case, as shown by the bill of exceptions, “ a witness being asked to describe the manner in which the said goods were thrown for by the betters, (or those taking chances,) defendant objected, (to the testimony,) if the
This same view, upon which the Court overruled the objection to the evidence, is carried into the charge to the jury, after reading to the jury the Sections of the Code creating and explaining the offence. (Secs. 412-3-4-5-6-7.)
The 413th Article of .the Code says, that the clause under which this indictment was found, and to which it conforms, “ shall be construed to include any and all games, which, in common language, are said to be dealt, kept, or exhibited.” Who is it that must determine what games are said (in common language) to be dealt, kept, or exhibited,—the Judge or the jury ? If the jury, it must be on the evidence of witnesses, as to what is said. What is said, in common language, as to a particular game being dealt, kept, or exhibited, in Western Texas, may not be said in Eastern Texas ; and the proof óf it one year might be very different from what could be made the next; for “ common sayings,” in reference to games, may be manufactured, changed, or abolished in that time ; and the preponderance of proof of them would of course be made to conform to such alteration by those interested in exculpating themselves. It was hardly intended to place the existence or non-existence of any offence upon any such fluctuating contingencies.
Article 412 prohibited the keeping or exhibiting a gaming table or bank—of every sort, of every name, and of no name. The regular games of this class, known throughout the world, whether yet introduced here or not, are certainly comprehended in this enactment. But the Legislature designed something more by it. They anticipated that disguises, shifts and subterfuges would be resorted to, by which the regular games
Thus it has been seen, that it is evidently the intention cf the Legislature to extend this prohibition over every possible game, falling under this class of gaming tables and banks, however regular or irregular they may present themselves, cr What may be their disguises. Whether they intended to extend it beyond that, and include every possible gaming device that has been or may be invented and exhibtcd, is not .now a practical question. Cases under the law should be decided, as they arise for judicial determination, and should not be made to depend upon what might possibly, or what might not possibly be included in it theoretically.
The true question that should govern a trial is, does this case, now on hand, come safely and certainly under the law' ?
The State offered proper evidence to prove the charge in the indictment, to-wit: that defendant “ did keep a gaming table for the purpose of gaming.” The defendant objected to this evidence conditionally ; that is, if offered by the State to prove a gaming device other than a gaming table. The Court might well have declined seriously entertaining such a question thus presented. The evidence was admissible under the indictment, and that was not questioned. But it was objected to its being received, to prove anything out of the indictment. Anything out of the indictment was not then being tried.
If the counsel differed with the Judge, as to what was included in the indictment, and that difference of opinion was about to be prejudicial to his client, he should have made the-question upon the charge ; and more appropriately, by asking a charge, having reference to the facts in proof. If such difference of opinion could have no application to the facts before the jury, the client could suffer no injury, even if his counsel were right in the matter, and the matter of difference would be harmlessly settled, by the Court rejecting the charge, as asked; because of irrelevancy, or any other reason, that
The evidence was clear, positive and without conflict, and described a gaming table as plainly as any description can be given of roulette. The Court read the articles of the Code, pertaining to the subject; and if that be admitted, which we decline now to decide, to-wit: that the charge of the Court in relation to keeping' a gaming device, for the purpose of gaming, is erroneous, we think it was not required by the facts, and was not, in'this case, calculated to mislead the jury to the defendant’s prejudice. Though a Court might, and indeed should, be extremely cautious in withholding a new trial for an error of the charge, yet even in cases of murder it has been held, that where it was clear from the facts in the case that' the jury arrived at the only conclusion of which the facts admitted, and the charge, though erroneous, could not possibly have operated to the prejudice of the defendant, the Court would not set aside the conviction. (2 Comstock’s R. 193, 202, 203 ; O’Connell v. The State, 18 Tex. R. 343.)
In the case referred to from Comstock, the erroneous charge
More attention has been bestowed on this case than its importance would seem to require. It has been given, not from anything peculiar or uncommon found in it, but from a belief that the unmistakeable desire of the State to ferret out and exterminate the vice of gaming may be greatly promoted by a more thorough knowledge of the subject of the offence, (for Court-house use at least,) on the part of those whose duty it is to administer the law.
Judgment affirmed.